Swalm v. State

• Decision Date: 31 January 1906
• Citation: 91 S.W. 575
• Parties: SWALM v. STATE.
• Court: Texas Court of Criminal Appeals

91 S.W. 575

SWALM v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1906.

Appeal from Grayson County Court; G. P. Webb, Judge.

M. Swalm was convicted of violating the local option law, and he appeals. Reversed.

W. J. Mathis, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for violating the local option law.

Graham testified: That on two occasions, during the summer or fall of 1904, he bought from appellant some wine or cider. That on each occasion he bought a quart. That it did not make him wholly drunk, but partially so, and in his opinion the wine or cider was intoxicating. That, when he bought the two quarts, appellant told him it was cider. He drank a quart in going from appellant's residence to his own, which was a mile and a half. He uses this language: "I was pretty well organized as the result of drinking this quart of cider or wine." He does not explain what he means by being "pretty well organized." Appellant denies the entire transaction, and shows by witness Turley that Graham told him he had never bought any wine or cider from defendant in person, but had bought some from different members of the family, and that the stuff was not in any way intoxicating. They also impeached his general reputation as being bad for veracity. The witness Hollingsworth was placed on the stand, and stated that he had known appellant for several years, and that on one occasion during the year 1904 he got some wine and cider at appellant's place, drank about a quart of the stuff, and he states that it made him "pretty limber." It was intoxicating. This witness then tasted a bottle on exhibition, and said that "the stuff I got was not like this. It was a great deal stronger." This witness was also a prosecuting witness in another local option case against appellant. Objection was urged to this testimony on account of its irrelevancy and immateriality, and because it was an attempt to prove another transaction or sale at a different time and place, and to a different person, and because it was in the nature of a comparison as showing that the goods alleged to have been purchased was intoxicating. These objections were overruled. There is no connection shown between these transactions.

It is not even undertaken to be shown by this witness that the instance he mentioned was a purchase from defendant in person, or that he got it from some of the members of the appellant's family. If Graham told the truth, he...